Appeal from the Order of the Pennsylvania Human Relations Commission in case of Marcella Phelps Hanson v. Thorp, Reed & Armstrong, Docket No. E-8538.
Judd N. Poffinberger, Jr., with him Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant.
Katherine H. Fein, Assistant General Counsel, with her Sanford Kahn, General Counsel, for appellee.
Anthony P. Picadio, for intervening appellee.
Paulette J. Balogh, Counsel, for amicus curiae, Southwestern Pennsylvania Council of the National Organization for Women.
Leslie Cooney, Zelda Curtiss, Jane Davis, Sally Frick, Rita Levine, and Marcia Webb, for amicus curiae, Duquesne Women Law Students Association.
Jon G. Hogue, Louise R. Malakoff, Frances O. Tennant, and Samuel A. Vitaro, for amicus curiae, The Legal Rights of Women Section of the Allegheny County Bar Association.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Dissenting Opinion by President Judge Bowman. Dissenting Opinion by Judge Mencer. Judge Crumlish, Jr. joins in this dissent.
[ 25 Pa. Commw. Page 297]
This is a case of first impression involving a question of alleged discrimination in employment under Section 5(d) of the Pennsylvania Human Relations Act*fn1 (Act), which provides:
"It shall be an unlawful discriminatory practice unless based upon a bona fide occupational qualification . . . .
[ 25 Pa. Commw. Page 298]
"(d) For any employer, employment agency or labor organization to discriminate in any manner against any individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act." (Emphasis added.)
We have previously, of course, considered many cases of alleged discrimination in employment under Section 5(a) of the Act,*fn2 and an issue of discrimination as prohibited under that section of the Act and as between the same parties here concerned may yet come before us if and when either party appeals from a still pending decision of the Pennsylvania Human Relations Commission (Commission) as to whether or not there was also discrimination in employment in this case because of the claimant's age or sex. Here, however, we are concerned only with the employer-appellant's appeal from the decision of the Commission that the employee-appellee, because of her original complaint of discrimination under Section 5(a) which has not yet been adjudicated, was later discriminated against under Section 5(d), and, if so, whether or not the Commission's order should be affirmed as issued.
The facts may be briefly stated. Marcella Phelps Hanson, then a 49-year-old woman attorney, who had then been employed as an associate of the law firm of Thorp, Reed & Armstrong (Thorp Reed) since November
[ 25 Pa. Commw. Page 2991970]
, filed a complaint with the Commission on December 20, 1974 charging discrimination in employment because of age and sex. Thorp Reed was not informed of this complaint, either by the Commission or by Ms. Hanson, until Thursday, March 6, 1975 when Ms. Hanson advised Mr. Ralph DeStefano, a partner in the firm, that the Commission would be serving a complaint on the firm the following day. About one hour later, after Mr. DeStefano had reported the matter to Mr. Clyde W. Armstrong, a partner and secretary of the firm's Executive Committee, Mr. Armstrong directed Ms. Hanson by a written memorandum to prepare a list of the files which she was handling on matters concerning clients of the firm, so that such matters could be reassigned. On the following Monday, March 10, 1975, a letter was drafted and delivered in behalf of the firm to Ms. Hanson placing her on an indeterminate leave of absence with pay but otherwise completely disassociating her from the firm. She responded two days later, on March 12, 1975, by filing a second complaint with the Commission, charging therein that Thorp Reed's actions on March 10, 1975 amounted to another unlawful discriminatory practice under Section 5(d) of the Act. The Commission, which had as yet scheduled no hearing on the first complaint, ...